Tuesday, May 31, 2011

Is Bobby Jindal Eligible to be President of The United States of America?

He was born in Louisiana, so he is a citizen by birth. His parents were immigrants here on green cards. Is he natural born? It's an important question since Jindal is regarded as a potential future candidate for President of The United States.

Like President Obama, I'm no legal scholar. I do know that despite the insistence of Obama haters who TYPE IN ALL CAPS, the issue is neither simple nor settled.

I have four presumably unbiased links below and all are inconclusive, because such a case has never been decided in a US court of law. The US Constitution does not define "natural born citizen."

If anyone has some authoritative references, please share them in the comments section.

If he was born on American soil then he's an American citizen even if his parents were not at the time he was born. This is why in the Navy we're always told to never, ever give asylum to a pregnant foreign national who is about to give birth because if the child is born on the ship, the kid is a US citizen.

John McCain was born on a military base which counts as US soil, and therefore he's an American citizen.

Yes, it does matter. And no, Jindal would not be eligible under the interpretation most frequently used to define "natural born". The confusion for most Americans results from their having avoided comprehensive civics classes in public school and subsequently (as indicated here) simply substituted their own attitudes as proof; the Founders were clear in their intention that no person with possibly divided loyalties should ever attain the nation's highest office- and there is adequate historical evidence to support that. Today, we see the living proof of their vision as BO continues to hide his personal history, leading to suspicion of his motives and bona fides.For additional perspective, note that this is actually not the first time we have suffered such a situation; research the case of president Chester Arthur and then inquire with some non-Progressive constitutional scholars about its significance.

It is true that the issue has not been resolved conclusively, largely because the SCOTUS, presumably our most authoritative source on legal matters, refuses to clarify the term. Historians have mostly put it into perspective by referencing Vattel (who was well known to the Founders), and illustrating the thoughts that surrounded their inclusion of such a requirement with concurrent letters and notes. Most rational scholars (that is, those without a severe ideological agenda in play) tend to agree that the idea was to prevent something like an "anchor baby" who might be raised by foreign nationals with non-American loyalty from achieving the single most powerful position in the nation. They were less concerned about other roles in government, but definite about the presidency/vice presidency.As for Arthur, there are many details of his career that deserve more-penetrating attention, including the coincidence of how the assassin of Garfield just happened to be one of his supporters. But the birth issue was seriously compromised when his political opponents hired a private investigator to research the matter and, lacking legal knowledge, he focused on trying to prove a rumor of foreign birth rather than pursuing the NBC point. The item about being born in Canada remains inconclusive due to the poor travel records keeping of the era, and also a dispute over whether the farming town he claimed as his birthplace was technically just across the border.Not the same with the case of Spiro Agnew, however, who was also the son of a foreigner and technically ineligible for the office. But, once again, as the old quip goes: "when is a law not a law? When you choose not to enforce it".

Once again, the classic confusion over 14th amendment citizenship versus NBC rears its ugly head; none of the cited cases of presidents are affected by those provisions, since that is a special case. I assume that those references (one of which comes from a "transparent borders" website) are intended to re-muddy the waters.The Arthur case is historically interesting and somewhat applicable because it represents an unexplored example of some of the same circumstances we face today. Likewise for Agnew. But in all three cases it is fairly obvious that since an available loophole existed (there is no statute law detailing a procedure for qualifying a candidate, hence the requirement for NBC becomes moot until challenged) most high-level politicians both then and now have demonstrated that they lack the integrity to sort the matter out once-and-for-all. I suppose that if I were a member of Congress I might experience similar career concerns. Unfortunately for Americans, the loophole is big enough not only to drive a truck through, but an entire nation as well.However, the circumstances this time are a bit different- past presidents have been vetted essentially by exposure of their personal history and the dedicated efforts of the "loyal opposition"- media exposure and editorial criticism tested most politicians seeking the highest office many times, leading to examination of every pimple and scar. Not so this time, and there are some serious details to consider, such as a foreign adoption that may have compromised BO's basic citizenship, some very suspicious use of social security numbers, and the circumstances of his education that might very well have included application as a foreign national. All these are serious factors in any examination of the background of someone about whom we know so little. For many, myself included, that provides adequate grounds to continue questioning his right to hold office. This seems to be exactly the sort of situation that the Founders envisioned when they penned that loyalty requirement. It is just a pity that they never got around to creating detailed instructions for its enactment.

Jersey, the legal argument is not whether or not a person born under "jus soli" is a citizen of the United States. Keep in mind that not all "citizens" are eligible to be president of the United States.

The argument is whether or not a citizen by jus soli meets the constitutional definition of natural born.

The constitution does not say you must be a citizen, it says you must be a natural born citizen or must be a citizen at the time of adoption of this constitution.

And I doubt Bobby Jindal is that old.

The constitution could easily have simply left it at "citizen" but did not, they made a distiction, at least in their minds, of "natural-born". Presidents and Vice-Presidents are required to be "natural born", representatives are only required to be "citizens".

In the initial draft submitted by Hamilton in June 1787, the wording was simply "citizen". John Jay objected in July of 1787 to foreigners in the administration and as commander in chief using the term "natural born" and the committee, with no explanation changed the wording to "natural born". So obviously, it meant something, if only to John Jay.

Until a competent legal authority (SCOTUS) rules on what that definition is, we'll be left wondering. Until they do they are derelict in the performance of their duties.

Here's another interesting puzzle for you. The constitutional eligibility statement also says "and been fourteen years a resident within the United States"... so if I spend the next 18 months living in England, am I eligible to run in the following election?

The natural born clause has always been interpreted through the jus soli standard because jus soli is a base standard for citizenship, with jus sanguinis and naturalization.

Naturalization, of course, would not be "natural born." But the courts have always asserted (since before the constitution and after - remember, this is old Common Law) jus soli and jus sanguinis do meet requisite of the Natural Born clause.

True, a presidency has never been challanged that way in modern times, but the soli and sanguinis standards are deemed legal and fair for citizenship without need of naturalization, hence equal to Natural Born.

There is no third way of looking at this. Jus soli and just sanguinis are weighted the same. There is no such thing as being Natural Born and not of the soil or blood, and neither can you be Natural Born and need be naturalized (you can not reverse renouncement).

Take Obama. His mother was an American. Right there you have jus sanguinis. He was born in the USA as far as we all know. Hence jus soli. He meets every requirement for being president in that sense.

Jindal is purely jus soli. But that is also good enough. He first opened his big eyeballs in the US of A and has been one of us ever since.

Finally, Obama's important tribesman of a delinquent father in Africa does not equate to a foreign national diplomat or spy or foreign national interest. That takes care of that clause.

Bobby Jindal's parents were here as old-school Green Card (re: Brain Drain) professionals from India. Good for us for actually keeping them here. That takes care of that clause too, as they were also under our laws at the time. Obama always also was as well, even when he was abroad.

There is no controversy here.

...

Silver, though at first I was cynical, I think you actually just structured and moderated a wonderful and fascinating debate with this post. All good debators. I just think we do have to come down to the fundamentals here and then we'll easily find that in these particular cases (Jindal and Obama) we should all easily agree they are both citizens.

Oh, as for your puzzel, Finn (excellent question, by the way), unless you were under US law (an exchange student, on extended vacation with relatives, working for the US gov't or a US business, receiving healthcare or some other special service, etc, etc) then I guess it would be a question of exactly how long you were there and why. This has never come up, but it's an interesting constitutional cunundrum.

Just to clarify Jersey, my point was that unless you came up with jus soli on your own, and unless you're the one that developed it, then you likely gained your understanding of it from an authoritative source.

I wasn't questioning your invocation of that, but rather the assertion earlier that one doesn't need authoritative sources in discussions like these.

I don't know, Jack. I learned all that stuff back when I was a kid in school. If anything, it was a annoying to have to look it all up. I thought everyone knew this stuff. Besides, the great thing about the Constitution, my friend, is it's intuitive 'rightness.' Ya' know? ;)

Jersey, I have to disagree that the courts have ever ruled on the issue. The only application of 'Natural Born' is for holding the office of President and Vice... the ruling has never been made.

To clarify John Jay's position:

The initial draft used the following verbiage:

"No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States."

John Jay wrote to George Washington, who was the presiding officer at the convention:

"Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Commander in Chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen."

In response to Jay's letter, yet with no documented explanation the wording was changed to:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

Now, well one can not completely fathom their intent, but there was definitely intent behind changing the wording from "Citizen" to "Natural Born".

It well could have been to simply shut John Jay up, but well never truly know.

The leading legal framework at the time of the drafting of the Constitution was Emerich de Vattel's "The Law of Nations" from 1758. Throught the records of the New York Society Library we know that George Washington was familiar with the book. The definition provided in the Law of Nations was: "The natives, or natural-born citizens, are those born in the country of parents who are citizens".

Benjamin Franklin was also the owner of a copy of the book since 1775, having received three copies from the Swiss editor Charles W.F. Dumas. So we can at least presume they were familiar with the difference between the phrase "citizen" and "natural-born citizen'.

Does this apply to Obama, I think not as legal precedence had been established that only one parent need be a citizen. Does it apply to Bobby Jindall? Well that seems to me to be unresolved.

You're probably right, Finn, that it's never gotten to the courts (I thought I remembered something like this coming up in the 19th century, but I must be mistaken).

There have been plenty of rulings on the status of ordinary citizenship though, and the point I was making is that there are essentially only two ways to become a citizen - Naturalization (including special granting), and being "Natural Born," and one can be "Natural Born" either by jus soli or jus sanguinis. Therefore both Jindal and Obama (and because they meet the further requisites as well) can be president.

Vattel's book "The Law of Nations" was not translated into English with the phrase in it Natural Born Citizen until TEN years after the US Constitution was written. Moreover, he is not referred to even once in the Federalist Papers, while the common law is referred to about twenty times.

So, where does the meaning of Natural Born Citizen come from? Not from Vattel. It comes from the meaning of Natural Born in the common law, and that ALWAYS meant citizenship due to the PLACE of birth, jus soli.

“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."---- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]

In the words, both Jindal and Obama (and Rubio too) are all Natural Born Citizens simply because of their place of birth.

The US Constitution does bar foreigners from becoming president because you have to be a US citizen to be a Natural Born Citizen.

And it also bars naturalized US citizens from becoming president. But there is absolutely no evidence that the writers of the Constitution considered the US-born children of foreigners to be foreigners.

Also, there is no evidence that they considered the US-born children of foreigners to be less reliable or less loyal than the US-born children of US citizens.

Babies born to foreigners who just }happen" to be in the USA at the time of the baby's birth should NOT! NOT!! NOT!!! be considered US citizens automatically. That's the STUPIDEST idea I've ever heard.

This is an old article but have you guys heard of the 14th Amendment where it reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The 14th Amendment, in part, was put in place to define citizenship after the Civil War. The Dred Scott Decision made it so those of African descent were not and could never become citizens. So the 14th outlines that if you are born in the U.S. you are a U.S. citizen. The Supreme Court has never ruled what natural born citizen really means.

Yes, we're familiar with it. My own opinion coincides with yours, but the controversy surrounding the issue distinguishng citizen (which we all agree he is) and natural born citizen (which some say he is not) is not settled and has never been before a court of law.

The Founding Fathers and those who fought in the Continental Army were our original Western Heroes, guided by the thinkers of the Enlightenment and following in the footsteps of great warriors like Jan Sobieski and Charles Martel.